ACA Submits Comments to Washington State Department of Ecology on Proposed Amendments to Antifouling Bill
Last month, ACA submitted comments to the Washington State Department of Ecology (DOE) on its proposed legislative draft bill that would amend Revised Code of Washington (RCW) 70.300.020 – Restrictions on Sale and Application of Antifouling Paint Containing Copper. This Washington law bans the manufacture, sale, and distribution of new recreational vessels with copper-based antifouling paint beginning on January 1, 2021. However, DOE recently submitted a report and recommendations to the Washington State Legislature — to be considered during the 2020 legislative session — that would delay this ban until January 1, 2026.
Notably, Washington’s 2020 legislative session is a short one: just 60 days.
While the bill is being considered by the Legislature, state resources will not be dedicated to enforcement. If the Legislature chooses to leave the ban in place, state officials have indicated they will “reprioritize and start enforcing the ban as needed and as resources permit.”
In 2011, the Washington State Legislature passed RCW 70.300.020 – Restrictions on Sale and Application of Antifouling Paint Containing Copper, to phase out the use of copper-based antifouling paints on recreational boats. A recreational vessel is defined in the law as being no more than 65 feet in length and used primarily for pleasure. The 2011 bill also directed DOE to study antifouling paints and report back to the Legislature about its findings in 2017. The first stage of the copper restriction was scheduled to take effect on January 1, 2018.
DOE’s report to the Legislature was completed in 2017 and found that there is not a proven, superior biocide alternative to copper. Thus, DOE recommended that the Legislature delay the ban on copper-based antifouling paints so it could conduct additional research. In response to Ecology’s 2017 report and recommendations, the Legislature passed Substitute House Bill (SHB) 2634 in 2018, which delayed the ban on copper-based antifouling paints until 2021. SHB 2634 provided DOE with ample time to conduct further research and analysis of antifouling paints and their ingredients, including the relative impacts of copper versus non-copper biocides using models based on Washington State data: Puget Sound marina designs and water quality conditions. SHB 2634 also directed Ecology to report back to the Legislature about their review and recommendations for regulatory changes, if any, in 2019.
DOE 2019 Report and Recommendations
Pursuant to the Legislature’s directive in SHB 2634, DOE submitted its report and recommendations last month. Specifically, Ecology recommends that the Legislature amend RCW 70.300.020 in the following ways during the 2020 legislative session:
- Delay the existing statutory ban on copper-based antifouling paints until 2026 to allow for more scientific research and information to be developed;
- Ban the sale and application of antifouling paints containing Cybutryne/Irgarol for recreational vessels in Washington; and
- Grant Ecology authority to request information from paint manufacturers regarding ingredients, leach rates, and other relevant data.
In general, ACA supports this approach because it allows the department to conduct additional scientific research that will help fill existing data gaps before the Legislature makes a final determination on whether to allow, prohibit, or restrict the use of copper-based antifouling paints on recreational vessels in the state.
While ACA and its member companies support and have cooperated with DOE’s collection of additional scientific data and information about biocides to ensure the passage of reasonable and scientifically sound regulations, there are outstanding concerns with the amount and type of information that DOE would be able to request as described in Sec. 3 of the proposed draft bill language.
ACA’s specific concerns are as follows:
- In Sec. 3 (1)(c), the bill states that DOE can request information regarding exposure and chemical hazard. ACA’s manufacturer members are not comfortable sharing information to this extent with DOE. ACA underscored that the risks of consumer use of their products have already been extensively evaluated by the U.S. Environmental Protection Agency (EPA) — Biocidal paints must be registered with the U.S. EPA and the Washington State Department of Agriculture (WSDA); WSDA staff review labels and documents from manufacturers for compliance with state law. ACA believes that label and product safety statements would be the best way to categorize the potential hazard and exposure. As such, it urged DOE to remove the language in Sec. 3 (1)(c) and instead rely on the state-submitted labels and product safety statements that are already available.
- In Sec. 3 (1)(d) and (e), the bill states that DOE can request a description of the function of each chemical in the product, as well as the amount of each chemical used. Even though this information would be submitted to DOE under their confidential business information (CBI) provisions, ACA member companies are still wary of the potential consequences of sharing such extensive and critical proprietary data with the agency — they do not see what use the department would have for this information due to the complexity of paint formulations. ACA urged DOE to remove these two subsections or provide more information on what the department is trying to accomplish by requesting this data. In the spirit of cooperation, ACA stated that it was open to alternative language if DOE provides sufficient background information.
- In Sec. 3 (1)(h), the bill states that DOE can request any other pertinent information requested by the department. ACA maintained that this request is entirely too broad and gives the department too much discretion in the type of information, as well as the amount of information, that it can require manufacturers to submit. ACA asked that this section be removed, as well.
ACA will continue to engage with DOE and the Washington State Legislature on behalf of its members.
Contact ACA’s Rhett Cash for more information.